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SBC Communications Inc. Opposes Breakup of Bundling by FCC
Comments by SBC Communications:
The Commission can and must conclude that ILECs need not provide unbundled loops, transports, or combinations thereof when those facilities would be used predominantly as substitutes for special access services used in conjunction with interexchange services ("traditional special access services") or interLATA private line services. That is, SBC asks the Commission to limit the availability of UNEs in situations in which the facilities are not used predominantly for local or xDSL services.
The Commission has ample legal authority to impose this limitation. Indeed, the Commission has five separate sources of such authority, two of which do not require a use restriction on UNEs. As a threshold matter, section 251(d)(2) requires the Commission to address whether carriers are impaired without access to UNEs to displace traditional special access and private line services. In addition, even if the impairment test is satisfied, the Commission has determined that it may limit access to UNEs under section 251(d)(2) in order to fulfill the goals of the 1996 Act, which include the promotion of facilities-based competition and deregulation. Aside from these two sources of authority to restrict the availability of UNEs, there are three sources of statutory authority upon which the Commission can rely to restrict the use of UNEs. Section 251(c)(3) permits the Commission to impose "just, reasonable, and nondiscriminatory" conditions in UNEs. Section 251(g) vests authority in the Commission to impose use restrictions to protect the access charge regime. And section 4(i) gives the Commission broad power to further the goals of the Act.
The Commission does not merely have the authority to prevent the elimination through the back door of its access charge regime; it has a legal obligation to limit access to unbundled loops, transport, or combinations thereof when those facilities would be used predominantly as substitutes for traditional special access or intraLATA private line services. As an initial matter, requesting carriers are not impaired in their ability to provide traditional special access or private line services without access to UNEs. Competition in special access services predated the 1996 Act by 12 years. Today, more than 100 competitive access providers have entered the special access/private line market, and it is estimated that they now account for one third of all special access/private line revenue. Indeed, their revenues are growing at a pace that far outclips those of the Bell companies and GTE. Under the circumstances, the Commission cannot conclude that carriers are impaired in their ability to provide or obtain traditional special access/private line services without using UNEs.
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